The court a quo sentenced the accused to a fine of $500=,
or, in default, ninety days. But this was for both Counts Two and Three….,.
The penalty for the offence under section 184(e) of the
Customs and Excise Act [Chapter 23:02] is a fine not exceeding level twelve, or
three times the duty-paid ...
The court a quo sentenced the accused to a fine of $500=,
or, in default, ninety days. But this was for both Counts Two and Three….,.
The penalty for the offence under section 184(e) of the
Customs and Excise Act [Chapter 23:02] is a fine not exceeding level twelve, or
three times the duty-paid value of the goods that are the subject of the
offence, whichever is the greater, or imprisonment for a period not exceeding
five years, or both such fine and such imprisonment.
The court a quo, without explanation, imposed one sentence
for both Counts Two and Three, namely, the fine of $500= aforesaid, or, in
default, ninety days.
That was manifestly irregular.
When I sought an explanation, the trial magistrate conceded
the anomaly. But he was referring to Count Two [smuggling] and Count One
[possession of copper] as the two that he had improperly combined for the
purposes of sentence. But that had not been what I queried. What I had queried
was his combining Count Two [smuggling] with Count Three [non-payment of excise
duty or surtax] for the purpose of sentence.
The trial magistrate, mistakenly referring to Counts Two
and One, felt that he had been justified in treating them as one for the
purposes of sentence since, in his own words: “…, they had been committed
concurrently …, with the same motive and intention…,.”
With respect, that explanation, whether for one or other of
the Counts that had been combined, was not satisfactory. If any two could be
combined, as the magistrate argued, then there was no logical reason why he did
not combine all three. He only combined two, yet all three emanated from a
single criminal enterprise.
The three Counts hung on different and separate,
stand-alone, statutory offences; each with its own prescribed penalty. In all
three, a fine is the first option. The trial court intended to, and did, impose
fines.
Fines cannot be ordered to run concurrently. Each Count had
to be sentenced separately. Combining Counts Two and Three, as the court did,
was a misdirection.
For Count Two, the prescribed fine is an amount not
exceeding level fourteen [$5,000=], or three times the duty-paid value of the
goods involved. The goods involved were copper and cigarettes. Although the
copper was said to be valued at $68,165=, it seems nobody bothered with the
duty-paid value. The State said the exportation of copper is prohibited. But
for the cigarettes, the duty-paid value was assessed at $1,731=36. Three times
that amount is $5,194=08. That means, in assessing the appropriate fine, the
magistrate could go up to an amount not exceeding $5,194=08.
For Count Three, the prescribed fine is an amount not
exceeding level twelve [$2,000=], or three times the duty-paid value of the
goods involved. The goods involved were cigarettes, the duty paid value of
which, as said already, was $1,731=36. Thus, again, the court could go up to $5,194=08
for the appropriate fine.
Given the misdirection aforesaid, the combined fine of $500=
for Counts Two and Three is hereby set side. It means this court is now at
large to use its own discretion to assess the appropriate fines.
For Count Two, the accused is sentenced to a fine of $250=,
or, in default of payment, twenty five days imprisonment.
For Count Three, the accused is sentenced to a fine of $200=,
or, in default of payment, twenty days imprisonment.
In the result, the court a quo is directed to recall the
accused and pronounce to him the following final result…,:
1….,.
2….,.
3….,.
4. The combined fine of $500= for both Counts Two and Three
above is hereby set aside and substituted with the following:
4.1 For Count Two, a fine of $250=, or, in default of
payment, twenty five days imprisonment.
4.2 For Count Three, a fine of $200=, or, in
default of payment, twenty days imprisonment.
